Osborn, P. J.
The defendant was indicted by the grand jury of Albany county, at this present term, for - the murder of one Erskine Wood, at the town of Coeymans, in July last. The defendant, upon being arraigned, was given, at the request of his counsel, an opportunity before pleading to move to quash the indictment, and his request was granted.
This motion is, therefore, to quash the indictment; also, that the accused may be furnished with the names of the witnesses who appeared before the grand jury, and on which the indictment was obtained, as well as the evidence, or a true copy thereof, as given by such witnesses.
The motion to quash the indictment is based solely on the ground that the wife of the prisoner was called as a witness, and gave important testimony against him, and this without his knowledge or consent.
The district attorney, upon the motion, stated that no [37]*37minutes of any consequence were kept of the testimony before the grand jury; that there had been a thorough examination of the charge before the coroner and the police magistrate of this city shortly after the homicide, and that full minutes were kept on such investigations. The witnesses before the grand jury were examined by the district attorney or his assistant, from these minutes, and it is asserted that the evidence is substantially the same.
I have examined these minutes, though very voluminous, with great care, to determine whether the evidence given by Mrs. Briggs probably affected or influenced, in any degree, the grand jury in presenting an indictment against the prisoner for murder in the first degree.
The prisoner has resided for many years in Coeymans. For some time before the day on which the homicide occurred, he had been upon the jail limits of Albany, an execution or executions having previously been issued against his body. He was in the habit of leaving the city every Saturday night after midnight, and going to his home in Coeymans, where he resided with his wife, returning before midnight Sunday evening, so as to prevent any action for an escape. The deceased, Erskine Wood, was, and for some months had been, a hired man, and boarded in the family of Briggs.
Briggs is a man well advanced in years. Mrs. Briggs is a second wife, and a comparatively young woman. Wood was a young man. !
On Sunday morning, July eleventh, Briggs arrived at his home at 2 or 3 o’clock in the morning, and got into the house without disturbing any of the inmates. He remained in an outer room, not going to the bed-room of his wife, and where she was at the time.
A short time after, Wood, as prisoner alleges, came from his own room in a nude state and went to Mrs. Briggs’ room and into the bed with her, and was about to commit adultery, when Briggs fired a pistol or revolver, inflicting injuries or wounds from which Wood died.
[38]*38After being shot, Wood ran to the house of a neighbor and was taken in and cared for. Briggs at once rings a bell attached to some of the buildings, and by this and the noise made by him he succeeded in getting some of his neighbors aroused, and they get to Briggs’ house at about, or shortly after, daybreak.
To these he makes the statement of the circumstances under which he shot Wood.
The neighbor to whom Wood went swears that he was naked when he first came to his house, and this greatly tends to corroborate the prisoner’s version of the transaction.
That Wood died from pistol wounds discharged by prisoner is not denied.
The more serious and difficult question to determine is, undér what circumstances did the killing take place %
I also find some evidence tending to show intimacy between Mrs. Briggs and Wood during the prisoner’s absence from home, such as riding together on several occasions.
It appears that, before the grand jury, Mrs. Briggs denied any adulterous or improper intercourse or intimacy with Wood, and says he was not in her room, to her knowledge, •that night, and that she was first aroused by the discharge of the revolver and noises immediately following.
It will, therefore, be seen that her testimony was most unfavorable and damaging to her husband, and would leave the impression that the killing was a deliberately planned act on the part of Briggs, and from a premeditated design to kill Wood.
In a word, that it was not committed in the heat of passion upon sudden provocation, or under such circumstances as- to make the crime anything less than murder in the first degree.
I am aware that the court of appeals has held, and all will admit properly, that a man may be guilty of murder in the first degree for killing another, while in the very act of adultery with his wife, when such killing was the work of deliberation and premeditation.
[39]*39But the same court has held that such adulterous conduct may furnish the greatest provocation for killing the adulterer, and when this is done upon a sudden discovery, in a moment of great mental excitement, and when the passions are aroused, so that the man has no time for deliberation and premeditation, but acts from the impulse of the moment, without an intent to kill, the crime is not murder, and a conviction could not be expected for any higher offense than manslaughter in the third degree.
From this it will be seen how important was the testimony of Mrs. Briggs for the prosecution, and how damaging to the accused. Without this, non constat, the indictment might not have charged this grave offense.
It may be said. that this can do no harm, even though it be erroneous, as upon the trial the alleged improper evidence can be kept out. . But under this indictment no bail can be given. The prisoner must remain in custody without such an opportunity for preparing his defense as his freedom would allow him, and which he might secure by bail if the indictment was for a lesser offense than is here charged.
This brings me to consider the question which underlies this motion. Was it proper, competent and legal for Mrs. Briggs to give this evidence ? Does the law permit her to be called as a witness and give evidence against her husband and in favor of the prosecution, even though she may be willing, without the knowledge or assent of her husband ? If so, the important part of this motion must be denied.
By the common law, and under our statutes prior to 1876, neither husband or wife could be examined as a witness for or against each other, except in prosecutions for personal violence, one upon the other. Unless, therefore, we can find some statute since that time which in express terms makes- it competent for the prosecution to call Mrs. Briggs as a witness against her husband, on a criminal charge, her evidence was not only improperly received by the grand jury, but it, is absolutely incompetent.
[40]*40The only statute under which it is pretended that such a course as was here pursued is permitted or admissible, is to be found in section 2, chapter 782 of the Laws of 1876, passed April twenty-seventh. That section reads as follows :
Section 2. In all criminal trials, and examinations before trial, a husband or wife may be examined on behalf of the other, but upon no such trial shall a husband or wife be compelled to testify against the other.
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Osborn, P. J.
The defendant was indicted by the grand jury of Albany county, at this present term, for - the murder of one Erskine Wood, at the town of Coeymans, in July last. The defendant, upon being arraigned, was given, at the request of his counsel, an opportunity before pleading to move to quash the indictment, and his request was granted.
This motion is, therefore, to quash the indictment; also, that the accused may be furnished with the names of the witnesses who appeared before the grand jury, and on which the indictment was obtained, as well as the evidence, or a true copy thereof, as given by such witnesses.
The motion to quash the indictment is based solely on the ground that the wife of the prisoner was called as a witness, and gave important testimony against him, and this without his knowledge or consent.
The district attorney, upon the motion, stated that no [37]*37minutes of any consequence were kept of the testimony before the grand jury; that there had been a thorough examination of the charge before the coroner and the police magistrate of this city shortly after the homicide, and that full minutes were kept on such investigations. The witnesses before the grand jury were examined by the district attorney or his assistant, from these minutes, and it is asserted that the evidence is substantially the same.
I have examined these minutes, though very voluminous, with great care, to determine whether the evidence given by Mrs. Briggs probably affected or influenced, in any degree, the grand jury in presenting an indictment against the prisoner for murder in the first degree.
The prisoner has resided for many years in Coeymans. For some time before the day on which the homicide occurred, he had been upon the jail limits of Albany, an execution or executions having previously been issued against his body. He was in the habit of leaving the city every Saturday night after midnight, and going to his home in Coeymans, where he resided with his wife, returning before midnight Sunday evening, so as to prevent any action for an escape. The deceased, Erskine Wood, was, and for some months had been, a hired man, and boarded in the family of Briggs.
Briggs is a man well advanced in years. Mrs. Briggs is a second wife, and a comparatively young woman. Wood was a young man. !
On Sunday morning, July eleventh, Briggs arrived at his home at 2 or 3 o’clock in the morning, and got into the house without disturbing any of the inmates. He remained in an outer room, not going to the bed-room of his wife, and where she was at the time.
A short time after, Wood, as prisoner alleges, came from his own room in a nude state and went to Mrs. Briggs’ room and into the bed with her, and was about to commit adultery, when Briggs fired a pistol or revolver, inflicting injuries or wounds from which Wood died.
[38]*38After being shot, Wood ran to the house of a neighbor and was taken in and cared for. Briggs at once rings a bell attached to some of the buildings, and by this and the noise made by him he succeeded in getting some of his neighbors aroused, and they get to Briggs’ house at about, or shortly after, daybreak.
To these he makes the statement of the circumstances under which he shot Wood.
The neighbor to whom Wood went swears that he was naked when he first came to his house, and this greatly tends to corroborate the prisoner’s version of the transaction.
That Wood died from pistol wounds discharged by prisoner is not denied.
The more serious and difficult question to determine is, undér what circumstances did the killing take place %
I also find some evidence tending to show intimacy between Mrs. Briggs and Wood during the prisoner’s absence from home, such as riding together on several occasions.
It appears that, before the grand jury, Mrs. Briggs denied any adulterous or improper intercourse or intimacy with Wood, and says he was not in her room, to her knowledge, •that night, and that she was first aroused by the discharge of the revolver and noises immediately following.
It will, therefore, be seen that her testimony was most unfavorable and damaging to her husband, and would leave the impression that the killing was a deliberately planned act on the part of Briggs, and from a premeditated design to kill Wood.
In a word, that it was not committed in the heat of passion upon sudden provocation, or under such circumstances as- to make the crime anything less than murder in the first degree.
I am aware that the court of appeals has held, and all will admit properly, that a man may be guilty of murder in the first degree for killing another, while in the very act of adultery with his wife, when such killing was the work of deliberation and premeditation.
[39]*39But the same court has held that such adulterous conduct may furnish the greatest provocation for killing the adulterer, and when this is done upon a sudden discovery, in a moment of great mental excitement, and when the passions are aroused, so that the man has no time for deliberation and premeditation, but acts from the impulse of the moment, without an intent to kill, the crime is not murder, and a conviction could not be expected for any higher offense than manslaughter in the third degree.
From this it will be seen how important was the testimony of Mrs. Briggs for the prosecution, and how damaging to the accused. Without this, non constat, the indictment might not have charged this grave offense.
It may be said. that this can do no harm, even though it be erroneous, as upon the trial the alleged improper evidence can be kept out. . But under this indictment no bail can be given. The prisoner must remain in custody without such an opportunity for preparing his defense as his freedom would allow him, and which he might secure by bail if the indictment was for a lesser offense than is here charged.
This brings me to consider the question which underlies this motion. Was it proper, competent and legal for Mrs. Briggs to give this evidence ? Does the law permit her to be called as a witness and give evidence against her husband and in favor of the prosecution, even though she may be willing, without the knowledge or assent of her husband ? If so, the important part of this motion must be denied.
By the common law, and under our statutes prior to 1876, neither husband or wife could be examined as a witness for or against each other, except in prosecutions for personal violence, one upon the other. Unless, therefore, we can find some statute since that time which in express terms makes- it competent for the prosecution to call Mrs. Briggs as a witness against her husband, on a criminal charge, her evidence was not only improperly received by the grand jury, but it, is absolutely incompetent.
[40]*40The only statute under which it is pretended that such a course as was here pursued is permitted or admissible, is to be found in section 2, chapter 782 of the Laws of 1876, passed April twenty-seventh. That section reads as follows :
Section 2. In all criminal trials, and examinations before trial, a husband or wife may be examined on behalf of the other, but upon no such trial shall a husband or wife be compelled to testify against the other.
Does this section confer the right claimed by the prosecution? It seems to me clearly not. The only innovation which this section makes upon the common law or the statutes as they formerly existed, was to give a right to a husband or wife to be examined as a witness on behalf of the other in a criminal trial or examination. Suppose this were all of the section, would it be contended for a moment that either could be called as against the other ? Of course not.
How, the other words are of a negative character. They certainly create no new right or privilege as to the husband or wife being witnesses that did not exist before. Mark the language: “ But upon no such trial or examination shall a husband or wife be compelled to testify against each other.”
The only construction that can be given to these words to warrant the position taken by the prosecution, would be that, because the legislature said they could not be compelled to testify against the other, the inference is they might do so if such testimony was voluntarily given. But it would be most dangerous to allow any such interpretation or construction of the section. Such an innovation upon the common law would require a positive, affirmative provision or enactment of the legislature. She could not be called as a witness in behalf of her husband until the legislature so enacted.
She certainly cannot be called to give evidence against him until the authority is expressly given.
It may be that the latter part of the section amount's to nothing. Certainly no one claimed, before its enactment, that husband or wife, by any law that ever existed, could be [41]*41compelled to testify against each other (Wylie agt. People, 53 N. Y., 525).
But it may have heen placed there (and I think this the more probable reason for the employment of the language) to prevent a husband or wife, after being called as a witness for the other, or on behalf of the other, as the language is, from being compelled, on cross-examination, to testify to facts injurious to the party in whose behalf he or she was called, and not inquired of on the direct examination, or at all necessary to explain the evidence given in chief.
For instance, a wife might be called as a witness on behalf of the husband, to prove some one isolated fact. It may be that the legislature, by saying that she should not be compelled to testify or give evidence against him, intended to prevent, upon a cross-examination, an inquiry into any other matters not inquired of upon the direct examination, and which might be very damaging to the husband, and so vice versa. Whether this be the correct solution or not, it is quite immaterial. It is enough that no positive enactment can be found making it proper to call husband or wife as a witness against the other. The following authorities (if indeed authorities are necessary on this point) go to substantiate this reasoning (22 Alb. L. J., 81; State agt. Houston, 50 Iowa, 512; Dill agt. State, 1 Tex. App. R., 278; Hubbell agt. Grant, 39 Mich., 641).
I have thus endeavored to show that Mrs. Briggs gave most important evidence against her husband before the grand jury, and, second, that such evidence was incompetent, for the reason that she could not legally give such evidence. It only remains to consider what is the remedy of the prisoner, if any.
The law requires, and the grand jury are always charged, that no indictment should be presented unless the guilt of the accused is clearly established by credible, legal and competent testimony. It may be said, and truthfully, that no indictment could ever stand if it was to be set aside because some illegal evidence was admitted. The grand jurors are not lawyers [42]*42and it often happens that questions are put and evidence elicited that would not be allowed in court. Shall every indictment therefore beset aside? I answer, by no means. Where there is sufficient legal evidence to warrant the finding of a bill, no court would set it aside for technical illegalities, which it is apparent did not and could not have influenced the' action taken. But in this case the mistake is one of substance, and examining, as I have, with great care the evidence taken, I am by no means prepared to say that such a conclusion would have been arrived at without the testimony of Mrs. Briggs.
In view of what has been stated it would seem that some remedy should be afforded to the accused. I think the relief invoked by his counsel, viz. : The motion to quash the indictment, the only one that can be afforded. In a case reported in 2 Gallison, 364, judge Story, at page 367, says:
“ The grand jury is the grand inquest between the government and the citizen. It is of the highest importance that this institution be preserved in its purity, and that no citizen be tried until he has been regularly accused by the proper tribunal. Every indictment is subject to the control of the court; and this indictment having been found irregularly, and upon the statement of a witness without oath, which was not evidence, a cassefrur must be entered ” (See, also, State agt. Burlingham, 15 Maine, 101; People agt. Shattuck, 6 Abb. N. C., 33 ; People agt. Hulbut, 4 Denio, 136; 1 Bish. Crim. Prac. [3d ed.], sec. 763; 1 Abb. Pr. R., 268 ; 1 Abb. Pr. [N. S.], 248, 249).
We think the indictment should be quashed, and the prisoner remanded to await the action of another grand jury.
In view of this disposition of the case it is quite unnecessary to examine the other branches of this motion.
The following order was thereupon approved and entered :
The grand jury at this term of the court having found and returned an indictment against the defendant for murder, and the defendant having moved, on the affidavits of Hiram G-. Briggs and Nathaniel 0. Moak, to quash said indictment. [43]*43How, after reading said affidavit and notice of motion, reading the minutes of testimony before the police justice, and taking the testimony of. the evidence of Peter J. Tedder, the foreman of said grand jury, viva voce, by which it appeared Allie T. Briggs, the wife of said defendant, was sworn as a witness in behalf of the people against her said husband, beforé said grand jury, on the investigation of the charge against defendant, whereon the indictment was found, and that said Allie T. Briggs, among other things, testified on such hearing and investigation before said grand jury that, at the time when defendant is claimed to have killed said Erskine Wood, she said Allie T. Briggs, was not committing adultery or having carnal connection with said Erskine Wood, one of the questions before the grand jury being whether defendant so killed said Wood while having carnal connection with defendant’s wife; and that said indictment was in part based and founded upon such incompetent evidence. After hearing Hathaniel 0. Moak, of counsel for defendant, and Lansing Hotaling, district attorney of Albany county, opposed, it is ordered and adjudged that said indictment be and the same hereby is quashed and prisoner remanded to await the action of another grand jury.
Note.—The precise point involved in the case of Briggs, as to the competency of the wife as a voluntary witness against her husband, was decided the same way in Byrd agt. State (57 Miss., 243), reported since judge Osborn's decision. The Code of Mississippi (sec. 759) provided (57 Miss., 245) that “Husband and wife may he witnesses for each other in all criminal cases, but they shall not be required to testify against each other as witnesses for the prosecution. Nothing herein contained shall be so construed as to debar full cross-examination by the prosecution of any husband or wife of an accused party who may be placed on the stand for the defense.” The court below (p. 245) “ held that, under this section, the wife may be a voluntary witness for the prosecution against her hus band’s consent.”
The supreme court, on error, reversed the conviction, saying (pp. 245-7): " We are constrained to differ from him (the judge below) in the construction he has placed on this statute.
“ The statute is in derogation of a very ancient and well established rule of the common law, based, as we have above seen, in great part, upon grave reasons of public policy, having reference to the preservation of the happiness of parties joined together in the marital relation. Statutes which are in derogation of the common law must be construed strictly, so as not to give them an operation and effect beyond the clearly expressed intention of the legislature {Hopkins agt. Sandidge, 31 Mass., 668). Such statutes are to be construed with reference to the principles of the common law, and it is not to be presumed that the legislature intended to make any innovation on the common law further than the necessity of the case required {ffliIwards agt. Q-avlding, 38 Miss., 118; Holman agt. Bennett, 41 Miss., 322). The rule of the common law excluded them as witnesses both for and against each other in criminal as well as civil cases. There was no difference as to their exclusion in either class of cases, and the rule was the same whether they were offered as witnesses for or against each other, except in a small class of criminal cases, where the wife was admitted to testify against the husband for her own protection and personal security. This being the state of the law, the legislature, by section 760, made them competent witnesses for each other in civil cases, leaving them still incompetent as witnesses against each other in that class of cases. In the section under consideration, the language is, ' husband and wife may be witnesses for each other in all criminal cases,’ clearly showing that the legislature intended to apply the same rule as to their competency in criminal and in civil cases. If the legislature had intended to make them witnesses against as well as for each other, it would have been an easy matter to express that intent in unmistakable language. No reason is perceived why the legislature should not have done so, if, indeed, they had that intent, nor is it easy to give a satisfactory reason why the legislature should make them witnesses against each other in criminal cases, when it is undoubted that they are restricted in civil cases to being witnesses for each other. The whole force of the implication, that the legislature intended to allow one to be a voluntary witness against .the other in criminal cases, arises from the use of the words ‘but they shall not be required to testify against each other as witnesses for the prosecution,’ following immediately after the provision allowing them tobe witnesses for each other, and as a part of the same sentence. We regard this as rather an over-cautious insertion to prevent an apprehended construction of the preceding words, than as engrafting a new and independent provision on the statute, which would be the case if it allowed the examination of one against the other, in case the party offered as a witness did not object.
“But if we are to construe this language to mean that the legislature thought that by the common law husband and wife might be required to testify against each other, when they were allowed to testify in behalf of each other, and to infer that this provision was inserted to prevent the operation of such a rule, without the consent of the party offered as a witness, it does not follow that we are to construe the provision as making this erroneously supposed rule of the common law a part of the statutes of the State. An enactment of the legislature, based on an evident misconception of what the law is, will not have the effect, per se, of changing the law so as to make it accord with the misconception (Dams agt. Delpit, 25 Miss., 445).
“ For the error in admitting the wife to testify against the husband, against his objection, the judgment is reversed, and a new trial granted, and cause remanded” (And see, also, People agt. Cramdon, 17 Hun, 490). [Rep.